Clarity for Indirect Discrimination

Steven Organ looks at a recent judgment of the Supreme Court and its effect on the law of indirect discrimination.

The Supreme Court’s recent judgment in the two linked cases of Essop and Ors v Home Office and Naeem v Secretary of State for Justice has provided some much needed clarity to the law of indirect discrimination. Judgment in both cases was given by Lady Hale, with whom each of the other four justices agreed.

Indirect discrimination is enshrined in English law by section 19 of the Equality Act 2010. It occurs where an employer imposes a provision, criterion or practice (a ‘PCP’) which disadvantages persons with a protected characteristic compared to persons without that characteristic. The protected characteristics under the Act are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion, sex and sexual orientation. A defence is available to the employer where they are able to show that the PCP is justified, ie. it is proportionate means of achieving a legitimate aim.

The Facts

In Essop the case concerned the ‘Core Skills Assessment’ – a test used by the Home Office to consider candidates for promotion. A study had found that black and minority ethnic candidates, as well as candidates aged 35 and over, were failing the test at a higher rate than white and younger candidates and therefore suffering a disadvantage. Significantly, no one has been able to identify the reason for this disparity. A number of employees brought claims for indirect race and/or age discrimination. The case eventually made its way to the Court of Appeal, which held that it was necessary for the claimants to show why the test was having this discriminatory effect. The Court of Appeal’s decision has been considered problematic as it flew in the face of the established position on indirect discrimination.

In Naeem, the claimant was an imam working as a chaplain for the Prison Service. The claimant brought a claim for indirect discrimination on the basis that the Service’s provisions for pay progression were disadvantageous to Muslim Chaplains. As of 1 April 2011, the average pay for Muslim chaplains was around £2,000 per year less than the average for Christians. The reason for this outcome was that pay progression was linked to length of service, and the Prison Service only began to employ permanent Muslim Chaplains in 2002. The Court of Appeal held that there was no indirect discrimination because the reason for the difference in pay – length of service – was nothing to do with religion.

The Judgment

In both cases the Supreme Court ruled that a prima facie case for indirect discrimination had been established. Lady Hale highlighted a number of salient features of indirect discrimination law. She explained that there is no requirement that a claimant must show why a PCP puts one group at a disadvantage – it is enough that it does. She observed that there is no requirement for a causal link between the disadvantage and the protected characteristic; however, there must be a causal link between the PCP and the disadvantage. Further, she noted that there is no need for the PCP to put every member of a particular group at a disadvantage – it is enough that a proportion are disadvantaged, and it is common for this to be established on the basis of statistical evidence. Finally, she emphasised that it is always open to the respondent to show that the PCP is justified – that there is a good reason for it.

Applying these principles, the Supreme Court allowed the appeal in Essop and remitted the case to the employment tribunal. There was no need for the claimants to prove why the CSA test had a discriminatory effect. However, where there was no causal link between the PCP and the disadvantage (eg. because the claimant had simply not turned up for the test) then the claim would fail. In Naeem, the Court held that the system of pay progression had put Muslim chaplains a disadvantage. The claim was therefore made out and it was up to the respondent to show that the PCP was justified. The employment tribunal had ruled that the scheme was objectively justified and the Supreme Court did not interfere with this assessment.

Analysis

The Court of Appeal judgments had left the law of indirect discrimination on very uncertain ground and had the potential to severely restrict the scope of such claims. This latest judgment from the Supreme Court does much to restore a measure of clarity. Both cases also highlight the need for all employers to consider the potentially discriminatory effects of any measures they implement and whether they can be justified in relation to a legitimate aim. If your business has any concerns about inadvertently discriminating due to a particular policy or practice, please contact our employment team who will be happy to advise.